Citation Nr: 22013984 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-16 106 DATE: March 11, 2022 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 2007 to August 2007 and from November 2010 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs Regional Office (RO). This matter was previously before the Board in December 2019, whereupon it was remanded to allow for an addendum opinion that addressed newly received treatment records showing that the Veteran had been treated for back complaints in 2012. Upon a review, the Board finds that there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Regrettably, the Board finds that further delay is necessary as the December 2019 VA addendum opinion offers an inadequate and conflicting rationale to support its conclusion that the Veteran's lumbar spine disorder was less likely than not related to his service. The examiner stated that "increased weight is placed on the Veteran's own reported history" and predicated their negative opinion on the Veteran's own statements at his February 2012 health questionnaire and January 2017 VA examination at which he reported only a "self-limited" back injury and a neck injury instead of a back injury, respectively. The examiner also stated that the Veteran had reported to his private provider that his current lumbar spine began with an April 2014 motor vehicle accident. The examiner cited a lack of contemporaneous records in the Veteran's file corroborating the incidence of a motor vehicle accident in 2011. However, in the same rationale, the examiner discounted the Veteran's favorable statements and the corroborative statements submitted by the Veteran's commanding officer, Captain S., confirming that the Veteran had indeed been involved in a motor vehicle accident in 2011 while service on active duty in Afghanistan. Instead, the examiner relied on the absence of contemporaneous records from 2011 confirming the incidence of a motor vehicle accident. Thus, the opinion is inadequate as it relies on the on the absence of treatment records without consideration of the Veteran's competent reports and assigns it no probative weight. Dalton v. Nicholson, 21 Vet. App. at 23 (2007). Then conversely, the examiner states that the Veteran suffered no back injury "even though his seatbelt broke and he was thrown to the floor of the Humvee [during his deployment to Afghanistan in 2011]. This is conflicting as the examiner states in one part of their rationale that the incidence of a motor vehicle accident is not supported by the record; but yet the examiner later acknowledges that an accident occurred in 2011 in which the Veteran was thrown about in his Humvee. In their rationale, the examiner also accepts the Veteran's treatment for back pain in 2012. Yet, the examiner does not provide an adequate explanation for why the Veteran's current back disorder is not related to the motor vehicle accident of 2011. Instead, the examiner seems to rely on the Veteran's own statements of a motor vehicle accident in 2014 and further relies on a few inconsistencies in the Veteran's statements in order to provide a negative nexus opinion against the Veteran's claim. The examiner also states that the Veteran self-reported that his back disability began from an April 2014 motor vehicle accident. However, the Board does not find that Veteran competent to make such a nexus determination and neither should the examiner rely on such a nexus determination made by the Veteran. Therefore, for these reasons, the Board finds that further delay is necessary to allow for an adequate opinion that properly addresses the question of whether the Veteran's 2011 motor vehicle accident (supported by lay statements and follow up treatment for back in 2012) are related to his current back pathology. The December 2019 addendum opinion is not adequate for adjudicating the issues before the Board and a remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes either to provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Overall, the Board finds the medical opinion of record is lacking in thorough rationale, contain conflicting statements, and fail to properly consider the lay statements of record, i.e. relying on unfavorable statements while disregarding favorable statements. Given the complex medical nature of the medical questions at issue and controversy, the Board has determined that in accordance with 38 U.S.C. § 5109, a remand is required for VA to obtain a new addendum opinion that provides an adequate rationale. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the Veteran's entire claims file to an appropriate clinician to obtain an addendum opinion regarding the Veteran's lumbar spine disorder. The examiner should review the entire claims file and note such review in the opinion. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner(s) is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's current lumbar spine disorder had its onset during service, or is otherwise related to such service? The examiner must specifically address the Veteran's June 2011 motor vehicle accident and explain why or why not the Veteran's current lumbar spine disorder is related to that accident. The examiner must specifically address whether the Veteran's low back pain with thoracolumbar muscle spasms for which he received private treatment in 2012 and 2013 was caused by an in-service injury during service, to include a June 2011 vehicular collision in Afghanistan In providing this opinion, the examiner should discuss the statement from the Veteran's supervising officer (see May 2016 Buddy/Lay Statement) concerning the Veteran's back injury in June 2011 and his observations of how it affected the Veteran in his duties. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.